Judge: Douglas W. Stern, Case: 22STCV20663, Date: 2023-12-13 Tentative Ruling

Case Number: 22STCV20663    Hearing Date: December 13, 2023    Dept: 68

Motion for Summary Judgment

Motion to Seal Certain Exhibits

Hooman Melamed, M.D., vs. Cedars-Sinai Medical Center, et al., 22STCV20663

Moving Parties: Defendants Cedars-Sinai Medical Center, CFHS Holdings dba Marina del Rey Hospital, the Medical Staff of Cedars-Sinai Medical Center, and the Medical Staff of CFHS Holdings dba Marina del Rey Hospital

I.                   Background

Plaintiff Hooman Melamed, M.D., (Plaintiff) filed this case on June 24, 2022. Plaintiff has alleged one cause of action against Defendants Cedars-Sinai Medical Center (CSMC), CFHS Holdings dba Marina del Rey Hospital (MDR Hospital), the Medical Staff of Cedars-Sinai Medical Center (CSMC Medical Staff), and the Medical Staff of CFHS Holdings dba Marina del Rey Hospital (MDR Hospital Medical Staff) (collectively Defendants). Plaintiff’s cause of action against Defendants is an alleged Violation of Health and Safety Code § 1278.5.

Plaintiff holds medical staff privileges at Marina del Rey Hospital. MDR Hospital is a distinct legal entity from CSMC. (Laguna-Kennedy Decl., ¶¶ 6, 8.) Plaintiff was previously a member of the CSMC Medical Staff, but since 2015, Plaintiff has continuously been a member of the MDR Hospital Medical Staff. (Romero Decl., ¶ 6.) Plaintiff has never been an employee of CSMC or MDR Hospital. (Laguna-Kennedy Decl., ¶ 14.)

In February 2016, Plaintiff entered into a one-year Directorship Agreement with MDR Hospital to serve as the Director of Scoliosis. (Laguana-Kennedy Decl., ¶ 16, Ex. A.) In August 2017, Plaintiff and MDR Hospital entered into a new Directorship Agreement for a two-year term. (Laguna-Kennedy Decl., ¶ 18, Ex. B.) Like the first agreement, this one provided that it could be extended for a period of one year “but only upon mutual written agreement of the parties.” (Id.) After a couple of extensions provided by amendments, the Directorship Agreement was extended for another year with an expiration of July 31, 2021. (Id., ¶ 23, Ex. D.)

The only parties to the Directorship Agreement were Plaintiff and MDR Hospital. (Laguna-Kennedy Decl., ¶ 31, Exs. B-D.) Under the terms of the Agreement, Plaintiff was to submit monthly activity logs detailing his work for the directorship. (Id., ¶ 20, Ex. B.) He only submitted logs for September 2017 through May 2018. (Id., ¶ 24.) On July 1, 2021, Vice President, Hospital Operations and Chief Operating Officer of MDR Hospital, Joanne Laguna-Kennedy was reviewing Plaintiff’s Directorship Agreement and found that no activity logs had been submitted in three years. (Id., ¶ 28.) She decided then to allow the Directorship Agreement to expire and notified Plaintiff of this. (Id., ¶ 31, Ex. E.) This was an MDR Hospital decision. CSMC, the CSMC Medical Staff, and the MDR Hospital Medical Staff had no involvement. (Id., ¶¶ 30-31.)

Plaintiff alleges that he made 43 reports concerning patient safety and care from August 2016 through May 2, 2022. (FAC, ¶ 6.) Four reports were made in the 120 days priors to July 1, 2021. (Laguna-Kennedy Decl., ¶ 35.) Ms. Laguna-Kennedy indicates that she was either not aware of the reports or did not consider them when making her decision to terminate the directorship. (Id., ¶ 36.) Plaintiff also alleges that he was subject to false accusations and threats made against him (FAC, ¶ 15), though the negative peer reviews are the only evidence that he provides for this allegation.

While a member of the MDR Hospital Medical Staff, Plaintiff has not faced any disciplinary action. (Romero Decl., ¶¶ 6-7.)

II.                Evidentiary Objections

a.      Defendants’ Evidentiary Objections to the Declarations of Hooman Melamed, M.D. and Christian Nickerson, Esq.

                                                              i.      Melamed Declaration

1.      Sustained: 1, 2, 3, 4, 5, 6, 9, 12, 14, 15, 16, 17, 18, 20, 21, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 45, 46, 48, 49, 50, 51, 52, 53, 54, 55, 56, 67, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97

2.      Overruled: 7, 8, 10, 11, 13, 19, 22, 44, 47

                                                            ii.      Nickerson Declaration

1.      Sustained: 1, 2, 3, 4, 5, 6, 7, 8, 9

2.      Overruled: None

III.             Defendants’ Motion to Seal Certain Exhibits

Defendants have filed a motion to seal Plaintiff’s Exhibits 71 through 84 that were lodged conditionally under seal with the Melamed Declaration as part of Plaintiff’s opposition. Defendants filed this motion pursuant to Cal. Rules of Court 2.550 and 2551, Cal. Evidence Code § 1157, Sections 14.2 and 14.3 of the MDR Hospital Medical Staff’s Bylaws, and the May 24, 2023, Stipulated Protective Order in this case. Defendants have filed this motion to seal on the basis that the documents contain confidential peer review communications and were so designated under the protective order.

The Court grants Defendant’s motion to seal, though the Court sustained Defendant’s evidentiary objections to Exhibits 71 through 84 on the basis that they are irrelevant.

IV.             Analysis

a.      Standard for Summary Judgment

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”¿ (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿ “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”¿ (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)¿ 

Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”¿ (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.)¿ 

When interpreting § 437c, courts have held that a three-step analysis is required: (1) Identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading; (2) Determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor; and (3) Determine whether the opposition demonstrates the existence of a triable, material factual issue. (AARTS Production, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064-1065.)¿¿ 

Summary Judgment may be granted only where all the supporting and opposition papers show there is no triable issue as to any material fact and the moving party is entitled to judgment “as a matter of law.” (CCP § 437c(c).)¿¿ 

As a result, the Plaintiff “must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not—otherwise, he would not be entitled to judgment as a matter of law but would have to present his evidence to a trier of fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851, fns. omitted; Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 562-563.)¿¿ 

The Defendant need only show the existence of a triable issue of material fact. (Union Bank v. Super Ct. (Demetry) (1995) 31 Cal.4th 573, 590; see Lopez v. SuperCt. (Friedman Bros. Invest. Co.) (1996) 45 Cal.4th 705, 713; Leslie G. v. Perfy & Assocs. (1996) 43 Cal.4th 472, 482.) Summary judgment would not be proper where the facts support a triable issue of fact.¿ 

b.      Issues for Summary Judgment

                                                              i.      The Section 1278.5 Claim

Defendants move for summary judgment against Plaintiff’s First Cause of Action for Violation of Health and Safety Code § 1278.5 on the basis that Plaintiff cannot establish a prima facie case because he has never been subject to disciplinary action against his privileges, nor have his privileges been materially affected. Defendants also argue that there is no causal link between Plaintiff’s alleged reports and any claimed retaliatory acts. Further, Defendants argue that even if Plaintiff could establish a prima facie case, Defendants’ actions were based on legitimate, nondiscriminatory reasons. Finally, regardless of their other arguments, summary judgment is warranted for CSMC and the CSMC Medical Staff because neither Defendant had any involvement in the alleged retaliatory acts.

When analyzing a Section 1278.5 claim on a motion for summary judgment, California courts apply the McDonnell Douglas framework set forth by the Supreme Court. (Scheer v. Regents of the University of California (2022) 76 Cal.App.5th 904, review denied (July 13, 2022); see also McDonnell Douglas, supra, 411 U.S. at p. 802.) Under the McDonnell Douglas framework, the plaintiff must first establish a prima facie case. (Scheer, at p. 910 [citing McDonnell Douglas, at p. 802].) If the plaintiff satisfies this burden, then the burden shifts to the defendant to “articulat[e] a legitimate reason for taking the challenged adverse . . . action.” (Id.) If the defendant satisfies its burden, then the burden shifts back to the plaintiff to demonstrate that the employer’s “legitimate reason is a pretext for discrimination or retaliation.” (Scheer, at p. 910 (citing McDonnell Douglas, at p. 804).)

To establish a prima facie case under Section 1278.5, Plaintiff must show: (1) he engaged in a protected activity; (2) a health facility subjected him to “discriminatory or retaliatory treatment” as defined by the statute; and (3) a causal link between his protected activity and the discriminatory or retaliatory treatment. (St. Myers v. Dignity Health (2019) 44 Cal.App.5th 301, 314.)

Section 1278.5(b)(1)(A) prohibits a health care facility from “discriminat[ing] or retaliat[ing], in any manner, against a patient, employee, member of the medical staff, or other health care worker of the health facility because that person” has “[p]resented a grievance, complaint, or report to the facility.” “Discriminatory treatment” is defined under Section 1278.5(d)(2) as follows:

“For purposes of this section, discriminatory treatment of an employee, member of the medical staff, or any other health care worker includes, but is not limited to, discharge, demotion, suspension, or any unfavorable changes in, or breach of, the terms or conditions of a contract, employment, or privileges of the employee, member of the medical staff, or any other health care worker of the health care facility, or the threat of any of these actions.”

(Health & Saf. Code, § 1278.5(d)(2).)

            Plaintiff alleges in his complaint that Defendants let his directorship expire because he made 43 reports regarding unsafe patient care and conditions at the hospital. Plaintiff argues that letting his directorship expire constitutes discriminatory or retaliatory treatment. He claims that there is a link between the expiration of the directorship and the safety reports that he made.

            First, the Directorship Agreement was between Plaintiff and MDR Hospital. The other three Defendants were not involved for purposes of Plaintiff’s Section 1278.5 cause of action against Defendants for the termination of the directorship. Therefore, summary judgment is granted in favor Defendants CSMC, CSMC Medical Staff, and MDR Medical Staff, as they were not parties to the Directorship Agreement.

            Next, Defendants argue that the Directorship Agreement between Plaintiff and MDR Hospital was for a fixed term, with the option to extend the agreement for a one-year period “upon the mutual written agreement of the parties.” (UMF 8, 48, 111, 172, 201.) Plaintiff argues that the agreement had an implied term of automatic renewal, but this assertion is not supported by the evidence, as the second amendment to the agreement, which was signed by Plaintiff, clearly states that the directorship was for a period of one year and had an expiration date of July 31, 2021. (Defendants’ Appendix of Exs., Ex. C.) There is no evidence to support Plaintiff’s argument that there were changes to the terms or conditions of the Directorship Agreement. The hospital simply did not renew it. Further, there is no evidence that the nonrenewal of the Directorship Agreement otherwise had any impact on Plaintiff’s medical staff privileges. (UMF 79.)

            Even if the nonrenewal of the Directorship Agreement was discriminatory conduct, Plaintiff has presented no material evidence linking the nonrenewal to the safety reports that Plaintiff had made. Section 1278.5(d)(1) provides a “rebuttable presumption that discriminatory action was taken by the health facility, or by the entity that owns or operates that health facility” if responsible staff had knowledge of the employee’s complaint and the alleged discriminatory action took place “within 120 days of the filing of the grievance or complaint by the employee.” Only 4 of Plaintiff’s reports were made in the 120 days before the expiration of his directorship. Of those, Ms. Laguna-Kennedy, who made the decision to terminate the directorship, did not even know about three of the reports at the time she made her decision. She did know about one of them, but she has stated that she did not consider the email Plaintiff sent her when making her decision about the directorship. (Laguna-Kennedy Decl., ¶ 36(d).) To rebut the presumption that the expiration of the directorship was related to Plaintiff’s reports, Defendants have provided evidence that MDR Hospital had legitimate business reasons for allowing Plaintiff’s directorship to expire. Plaintiff had not submitted a monthly activity log for the directorship since May 2018, which was a condition of the Directorship Agreement. (Laguna-Kennedy Decl., ¶ 24.)

Plaintiff also attempts to link the confidential peer review communications to the nonrenewal of the directorship, but the Court found that these documents are irrelevant to the motion for summary judgment because there is no evidence linking them to the Directorship Agreement. Additionally, Plaintiff appears to argue that this peer reviews were somehow a retaliatory action, but Plaintiff has provided no evidence that he faced any negative consequences to his terms or conditions of employment based on these peer reviews. Plaintiff also claims that Defendants blocked him from being chief of surgery and from being on the pain committee (Melamed Decl., ¶ 22), but these claims lack foundation and are based on hearsay, which is why the Court sustained Defendants’ objections to this paragraph of the declaration.

Based on the foregoing, Plaintiff has presented no evidence that there are material issues of triable fact related to his Section 1278.5 claim against Defendants. He has failed to present evidence that there is a sufficient nexus between the expiration of the Directorship Agreement and the safety reports that he made. The Court grants Defendants’ motion for summary judgment.

V.                Order

Defendants’ motion for summary judgment is GRANTED.

Defendants’ motion to seal certain exhibits is also GRANTED.